U.S. DEPARTMENT OF LABOR EMPLOYMENT STANDARDS ADMINISTRATION
OFFICE OF WORKERS' COMPENSATION PROGRAMS
DIVISION OF ENERGY EMPLOYEES OCCUPATIONAL
   ILLNESS COMPENSATION
FINAL ADJUDICATION BRANCH

 

EMPLOYEE:

[Name Deleted]

CLAIMANT:

[Name Deleted]

FILE NUMBER:

[Number Deleted]

DOCKET NUMBERS:

10032182-2006

DECISION DATE:

March 3, 2008

 

NOTICE OF FINAL DECISION

 

This is the decision of the Final Adjudication Branch (FAB) concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq.  For the reasons set forth below, your claim is approved for impairment benefits in the amount of $195,000.00 based on lung cancer under Part E of EEOICPA, approved for $55,000.00 in wage-loss benefits under Part E, and approved for the consequential illness of coronary artery disease under Part E.  You received state workers’ compensation benefits of $126,173.60 for your covered illness of lung cancer, and this will be coordinated with your Part E benefits, leaving your net entitlement to compensation under Part E as $123,826.40.

 

STATEMENT OF THE CASE

 

On October 15, 2001, you filed a claim for benefits under Part E (formerly Part D) of EEOICPA and identified lung cancer as the illness that allegedly resulted from your employment at a Department of Energy (DOE) facility.  On February 20, 2004, the FAB issued a final decision concluding that you were entitled to lump-sum monetary and medical benefits for your lung cancer under Part B of EEOICPA.  Based on that conclusion, you were awarded $150,000.00 and medical benefits for your lung cancer under Part B.  On August 9, 2006, the FAB issued a final decision that also awarded you medical benefits under Part E of EEOICPA for your lung cancer.

 

On January 8, 2007, the district office received your request for impairment and wage-loss benefits under Part E based on your lung cancer.  You elected to have a physician selected by the Department of Labor perform the impairment rating.  You also you stated that you first experienced wage-loss beginning in 1997, when you were “officially medically retired from work at Westinghouse Savannah River Plant” and that this wage-loss has continued since then.

 

The DOE confirmed your employment at the Savannah River Site (SRS) in Aiken, South Carolina from April 23, 1984 to November 1, 1997.  You worked for E.I. DuPont and Westinghouse, two DOE contractors, during your employment at the SRS.  The medical evidence includes a January 3, 1995 pathology report, signed by Dr. Sharon Daspit, which confirms a diagnosis of squamous cell carcinoma of the left lung.  On April 25, 2007, the district office also received your request that your coronary artery disease be accepted as a consequential illness of your lung cancer, as it is related to your radiation treatment for your lung cancer.

 

To determine your “minimum impairment rating” (the percentage rating representing the extent of whole person impairment, based on the organ and body functions affected  by your covered illnesses and the extent of the impairment attributable to your covered illnesses), the district office referred your file material to a District Medical Consultant (DMC). 

 

On April 18, 2007, the DMC reviewed the medical evidence of record and determined that pursuant to Table 8-2 of the Fifth Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, your covered illness of lung cancer resulted in a Class 4 respiratory disorder that translated to a 73% whole person impairment.  The DMC also determined that pursuant to Table 3.6a of the Guides, your coronary artery disease resulted in an 18% whole person impairment.  Using the combined values chart contained in the Guides, the DMC concluded that you had a 78% whole person impairment due to your covered illnesses of lung cancer and coronary artery disease.  The DMC explicitly stated that your cardiac condition is “due to the radiation of the lung cancer, and such is a known complication of chest radiation.”

 

You submitted your Social Security Administration earnings statement, which shows that you last had recorded wages in 1997.  An April 8, 1997 letter from Dr. James R. Mobley states that your pulmonary and cardiovascular systems “are so marginal that any stress will possibly cause an exacerbation” of your problems, and that in his opinion you should be considered totally disabled from gainful employment. 

 

You submitted a copy of your “Compromise Settlement Agreement and Petition for Approval” confirming that you received a settlement of your state workers’ compensation claim totaling $126,713.60 for your lung cancer.

 

On June 8, 2007, the Jacksonville district office issued a recommended decision finding that your coronary artery disease was a consequential illness related to your lung cancer treatment, that your accepted illnesses of lung cancer and coronary artery disease resulted in a 78% whole body impairment, that you were entitled to $195,000.00 in impairment benefits, and calculating your wage-loss benefits as $55,000, which was capped when the total amount of Part E monetary benefits reached $250,000.00.  From this combined maximum amount of $250,000.00, the district office subtracted your $126,173.60 in state workers’ compensation benefits and recommended that you be awarded a net payment of $123,826.40 in monetary benefits under Part E of EEOICPA.

 

In its recommended decision, the district office stated that you had no earnings reported to Social Security for the years 1998 through 2006; however, it stated that since total Part E compensation was statutorily capped at $250,000.00 and it was recommending that you receive $195,000.00 in impairment benefits, your wage-loss benefits were only calculated for the years 1998 through 2001 (you are entitled to $15,000 in wage-loss benefits for the qualifying calendar years 1998 through 2000, and $10,000.00 for the qualifying calendar year 2001).  This totals $55,000.00 in wage-loss benefits.

 

On June 15, 2007, the FAB received your waiver of your right to object to the findings of fact and conclusions of law contained in the recommended decision.

 

On July 13, 2007, the FAB remanded your claim, and stated that the recommended decision did not take into account the full amount of wage-loss benefits to which you are entitled.  The FAB stated that, “It is true that total compensation, excluding medical benefits, under Part E may not exceed $250,000; however, it is the final number after coordination of state workers’ compensation benefits that cannot exceed $250,000, not the benefit amount before state workers’ compensation benefits are subtracted.”

 

On November 21, 2007, the Director of DEEOIC issued a Director’s Order vacating the July 13, 2007 remand order issued by the FAB.  The Director’s Order stated that the only way to interpret the regulations at 20 C.F.R. § 30.626(a), which state “the OWCP will reduce the compensation payable under Part E by the amount of benefits the claimant receives from a state workers’ compensation program by reason of the same covered illness,” is to stop calculating the benefits an employee is entitled to under Part E at $250,000.00, and then coordinate the state workers’ compensation benefits. 

 

Following an independent review of the evidence of record, the undersigned hereby makes the following:

 

FINDINGS OF FACT

 

  1. On October 15, 2001, you filed a claim for benefits under Part E (formerly Part D) of EEOICPA.  You identified lung cancer as the illness you alleged resulted from your employment at a DOE facility. 

 

  1. On February 20, 2004, the FAB issued a final decision determining that you were entitled to lump-sum and medical benefits for your lung cancer under Part B, and awarding you $150,000.00 and medical benefits for your lung cancer under Part B.

 

  1. On August 9, 2006, the FAB issued a final decision awarding you medical benefits under Part E of EEOICPA for your covered illness of lung cancer.

 

  1. Your coronary artery disease is a consequential illness of your lung cancer.

 

  1. On April 18, 2007, the DMC reviewed the medical evidence of record and determined that your covered illness of lung cancer and covered consequential illness of coronary artery disease resulted in a 78% whole person impairment.

 

  1. You last had recorded wages in 1997.  Your doctor states that your pulmonary and cardiovascular systems “are so marginal that any stress will possibly cause an exacerbation” of your problems, and that in his opinion you should be considered totally disabled from gainful employment.

 

  1. You were born on October 5, 1942 and turned 55 years old in 1997.  Your normal Social Security retirement age is 65 years.

 

  1. You received $126,173.60 in state workers’ compensation benefits for your lung cancer, based on exposure to ionizing radiation.

           

Based on these facts, the undersigned hereby makes the following:

 

CONCLUSIONS OF LAW

 

If the claimant waives any objections to all or part of the recommended decision, the FAB may issue a final decision accepting the recommendation of the district office, either in whole or in part.  20 C.F.R. § 30.316(a).  You have waived your right to file objections to the findings of fact and conclusions of law issued in the May 9, 2007 recommended decision.

 

Under Part E of EEOICPA, a “covered DOE contractor employee” with a “covered illness” shall be entitled to impairment benefits based upon the extent of whole person impairment of all organs and body functions that are compromised or otherwise affected by the employee’s “covered illness.”  See 42 U.S.C § 7385s-2(a); 20 C.F.R. § 30.901(a).  This “minimum impairment rating” shall be determined in accordance with the Fifth Edition of the Guides.  See 42 U.S.C. § 7385s-2(b).  The statute provides that for each percentage point of the “minimum impairment rating” that is a result of a “covered illness,” the “covered DOE contractor employee” shall receive $2,500.00.  See 42 U.S.C. § 7385s-2(a)(1). 

 

The evidence of record indicates that you are a covered DOE contractor employee with a covered illness of lung cancer and a covered consequential illness of coronary artery disease.  You have a “minimum impairment rating” of 78% of your whole body as a result of your covered illnesses of lung cancer and coronary artery disease, based on the Guides. You are therefore entitled to $195,000.00 in impairment benefits (78 x $2,500 = $195,000.00) under Part E of EEOICPA.

 

In order to be entitled to wage-loss benefits under Part E, you must submit factual evidence of your wage-loss and medical evidence that is of sufficient probative value to establish that the period of wage-loss at issue is causally related to your covered illness.  See Federal (EEOICPA) Procedure Manual, Chapter E-800.6b (September 2005).  You were born on October 5, 1942 and turned 55 years old in 1997.  Your normal Social Security retirement age is 65 years.  You last had recorded wages in 1997 and have not had any wages since then.  Your doctor states that your pulmonary and cardiovascular systems “are so marginal that any stress will possibly cause an exacerbation” of your problems, and that in his opinion you should be considered totally disabled from gainful employment.  This is sufficient to show that you had wage-loss related to your covered illnesses of lung cancer and coronary artery disease beginning in 1998.

 

Accordingly, your claim for wage-loss benefits under Part E of EEOICPA is accepted in the amount of $55,000.00.  You are entitled to $15,000.00 in wage-loss benefits for the qualifying calendar years 1998 through 2000, and $10,000.00 for the qualifying calendar year 2001.  This totals $55,000.00 in wage-loss benefits, which together with your $195,000.00 in impairment benefits, totals the statutory maximum of $250,000.00.  Therefore, your wage-loss eligibility ends there.

 

All benefits payable under Part E of EEOICPA must be coordinated with the amount of any state workers’ compensation benefits that were paid to the claimant for the same covered illness or illnesses.  See 42 U.S.C. § 7385s-11.  Based on the evidence in the file, this results in a reduction of the maximum amount payable to you in impairment and wage-loss benefits, $250,000.00, by $126,173.60, resulting in a net entitlement of $123,826.40.

 

Therefore, your claim for the consequential illness of coronary artery disease is accepted under Part E.  Your claim for impairment and wage-loss benefits under Part E for your lung cancer and coronary artery disease is also accepted, and you are awarded a net amount of $123,826.40. 

 

Washington, DC

 

 

Carrie A. Rhoads

Hearing Representative

Final Adjudication Branch